Posted
by
Zonk
on Thursday October 26, 2006 @06:07PM
from the that's-gootube dept.

bartle writes "Slate is running an article that analyzes the question of how much legal trouble Google may get in having bought YouTube. Not much, according to the author, and thanks seem to go to a provision in the DMCA that may provide more protection for YouTube than torrent services." From the article: "But what about Mark Cuban's copyright argument? Why isn't YouTube in trouble in the same way Napster and Grokster were? The first difference, as indicated, is that Napster simply wasn't covered by the 512 safe-harbor law, and YouTube is. Napster wasn't "hosting" information at the direction of its users, but rather providing a tool for users to find and download predominantly infringing content. It may sound odd that Napster gets in more trouble for helping you find illegal stuff than YouTube does for actually hosting it. But that's the law and why YouTube should really, really thank its friends at Bell."

That this is marked "funny" seems odd. It is the job of lawyers to come up with interpretations of the law that support their client. It is then the job to convince a judge or jury of the reality of this position by showing their interpretation, is, at the time, "correct".

There is no absolute right or wrong answer. There is "one correct answer" to the previous poster's question. There is only that, which a lawyer can convince a court

If someone hosts a website of songs, and I go to that website and I download them, then the RIAA may very well come after me.So if I go to a website with videos, and I download those, what's the difference?

What if I watch a video which includes a song? Am I just as guilty of infringement as if I had downloaded the song only?

Actually, there is a difference, in one case you keep a copy of the material locally and in YouTube's case you don't. But if you download a video from YouTube to your hard drive that h

Instead of arguing the merits of this particular case, we should be using this opportunity to write our representatives and tell them it's stupid shit like this that makes the DMCA a joke and why it should, at the very least, be re-written.

Huh? After reading TFA, I like section 512. Sounds to me like this one of the few GOOD things that the DMCA has in it. If hosting companies were held responsible for everything on users uploaded, it would stifle virtually all the creativity the web has given birth to.

I hate to defend the DMCA, but all laws have grey areas, which is why we have courts. You could say that about somebody who was fined for speeding and given parking tickets, while taking there wife to the hospital to have a baby. Should this invalidate speeding and parking laws?

Maybe. But, the problem is that you are trying to apply human logic to law.It doesn't work like that. Law is about power (people with guns) telling you(the little people) what you can and cannot do. All this talk about what is bestfor "society" is merely the smoke and mirrors that lends an air of legitimacy tothe psychopathic agenda.Don't try and rationalise with lawyers, you will do no better than Alice in Wonderland.The lawyers will beat you every time because they define the rules of the gameas they go.

If someone hosts a website of songs, and I go to that website and I download them, then the RIAA may very well come after me.

No, IIRC, they have never sued someone for downloading songs, only for distributing them/making them available on a P2P network. They will, however, sue the owner of the site which you downloaded them from.

Of course, when you "download" over a P2P network, you are always distributing them to other people (that's what makes the network tick).

IANAL.
The RIAA does NOT sue people for downloading songs illegally. They sue them for distributing them. They look for songs that people are sharing. They download a few in order to prove that they are, indeed, the real thing. Then they sue for distribution. I have never seen news of a lawsuit by the RIAA for downloading.
If I am incorrect, please point me to where I can read about what is going on.

The thing that always hurt Napster was that nobody could go to Napster's system and legitimately say that it was being used for anything other than piracy. There was a handful of legal content on there, burried in a sea of pirated files. On the other hand, YouTube is mostly non-copyrighted material.

Sure we get excerpts of the occasional TV show, clips from Olberman, and Stewart, but it's not wholesale copying and the quality is twelth rate. Nobody's going to decide to not buy a DVD of a film because they watched it on YouTube. So really I don't see YouTube having a problem. They take down content when notified that it infringes copyright and they move on.

Attack of the pedant: YouTube is mostly copyrighted (since in the U.S. everything is copyrighted automagically) material hosted and distributed with permission of the author (implied by them uploading it to YouTube). But I know what you meant, non-infringing material.

Honestly, what I see on YouTube IS mostly infringing works.Seriously, having a thousand Dragonball Z montages with Coldplay or some other band is simply creative copyright infringement. Funny commercials, yeah, copyright infringement, if they weren't put there by the ad company.

Even half of the user generated content probably wasn't put up by the copyright holders. It was put up by someone who thought that it was a cool video. They didn't ask if they could put it up. Sure, it's not commercial, but it's stil

the daughters of senators and district attorneys and other rich people tell their parents that YouTube is great. Napster was a little too hard for the estemed gentleman's little princess to figure out, but YouTube isn't.

I'd say there's a lot of truth in that. Something that is nice and accessible (think VCR's) seem to be ok when it comes to copyright infringement, but when it's something that isn't properly understood (think BitTorrent) by the old fuddy duddy senators, it must be bad.
It seems to me that when the majority of the population is breaking a particular law (such as copyright infringement), there is something wrong with that law.

Nah. You're being too democratic, ya gotta be more Nietzsche [marxists.org]. Laws are created and enforced by the people with the power. If a law isn't in the interest of the ruling class then it will be ignored.. until such time that it actually starts affecting them, then it will be brutally enforced. No matter how much we might care to think so, few of us living in societies where the majority control the power. We pretend that's the case, but unfortunately the majority of us are more than willing to hand the powe

the daughters of senators and district attorneys and other rich people tell their parents that YouTube is great. Napster was a little too hard for the estemed gentleman's little princess to figure out, but YouTube isn't.

That's right, because district attorneys and "other rich people" (whatever that means in the context of the law) make decisions on the basis of what their "little princesses" tell them. Doubtless that's how lawyers, judges and "other rich people" decide all kinds of things, like what mus

I think you're right that they won't want to enact/enforce any law that would make their kids into criminals, but I don't think he was implying that we aren't ruled by the rich. Probably quite the opposite. The way I took it, he was saying that money thrown their way speaks much much louder than their kids. I think both play a part. Not sure which would win in this case really.

Big Media has been winning for a long time now, in the halls of Congress and in the courts. The (supposed) fact that Senators' daughters like YouTube isn't going to affect that one bit. If YouTube prevails, it will be because the law, which has become progressively more well-defined regarding digital media, is on YouTube's side. The DMCA, for all its faults, gives hosting companies a big out in the form o

You mention Youtube...posts copyright material, safe harbor provison...Grokster, Napster; no Safe Harbor protection, for posting copyright materials and then you mention Torrent sites that post....wait. a Torrent is the copyright material itself? I thought it was merely a seed for a server-less system, that is a table, an index. Now I am confused. Is an index part of someone's copyright material now?

One thing I've always wondered about. Why wouldn't the RIAA/MPAA just hire a third party to cull IP addresses from the trackers by joining the swarm? They can record the IP addresses that upload data. Why would they need to bother piratebay (or whatever tracker site) to get the IP addresses? I mean, you could get have a bittorrent client log every single IP that uploads data to you. Blow the data away and start again. Leave it on for weeks, and you'll get thousands of IP addresses from the more popula

HBO did use this method [wordpress.com] not too long ago. In my opinion it's a lot more effective than just about any other. HBO doesn't even have to upload anything - they just use custom peers to download a packet from each client they come across in a popular swarm. Then they can just show in court how that piece can be mathematically proven to be part of an episode of their show.

I should point out, to HBO's credit, they haven't yet gone sue happy even though their technique seems much more likely to stand up in court. They're just firing a lot of warning shots.

I'd like to point out that all their client would be able to prove is that you had that one packet on your computer, and not the whole file =) Download the whole file, and then you can prove the whole file was there. Technically, I can seed a whole sea of leachers in a swarm with just that one packet, with other seeders in the swarm dishing out the rest of the file.

While that's true from a technical perspective, I would be surprised if that held up in court. While you may not be sharing the entire file yourself, you are at the very least taking part in the "scheme". A smart judge (and most of them ARE smart) would cut through the technical crap that he probably didn't totally understand (or care about), and go after the heart of the matter - which is that you're sharing copyrighted content.

In fact, precident for this is well established. Way before digital media, people tried to get around copyright law by distributing films divided by a new intermission, films that had a minute here and there trimmed, films where some wide angle shots were re-edited for close ups, audio tapes with one song missing from a whole album, etc. and claiming these weren't violations. The last such arguements got shot dowm by about 1955. The 1978 Berne treaty on copyrights has specific clauses where they define civil violations as including "either all, or any substantial part of" the item, probably just to reinforce this principle. I'm not sure about what''s actually spelled out in the 1998 treaty, but it references Berne enough that the details probably don't really matter.
Applying this would simply take a judge looking at these precedents and deciding that any part big enough to help another person get the whole work counted as a substantial part. With existing decisions against a group of infringers who duplicated each reel of a 10 real film in separate film labs in multiple countries, before shiping the reels individually into India, where they were finally put together, as precidents, that's likely to be a no-brainer for any half-way competent judge.

they just use custom peers to download a packet from each client they come across in a popular swarm. Then they can just show in court how that piece can be mathematically proven to be part of an episode of their show.

But is this enough? All they can really prove is that you have distributed that particular piece, which in itself probably is completely worthless.

Well, aside from how insanely easy it is to spoof an IP log (not that they did, but rather that you can't know beyond a reasonable doubt that they didn't), I think a single packet, or even a single block might actually fall within fair use - you'll be uploading maybe six seconds worth of the show. I doubt it, but I suppose it would be worth a try. Though in honesty, I'd be much more likely to respond as desired to a cease and desist letter than a lawsuit - the former would probably get me to stop seeding

Actually... THere is a defense against this caused by the same people.Ever notices there are fake files released into the channels? Like file that contain static noise, or have wrong file names, only contain a trailer?

You cannot determine if you got the file you actually wanted until you downloaded it. Specially porn get retagged a lot! (not that i download that 0-) ). So you cannot determine as a user you are sharing a particular file until you have completed downlaoded it, validated the hash and the filen

YouTube has processes in place to receive DMCA takedown notices and remove identified copyright material. Napster didn't have a process in place to do this, and claimed to not be able to do so. The judge disagreed and said Napster had both the ability and duty [wikipedia.org] to remove identified copyrighted material, but did not, so Napster was held liable.

YouTube has processes in place to receive DMCA takedown notices and remove identified copyright material. Napster didn't have a process in place to do this, and claimed to not be able to do so. The judge disagreed and said Napster had both the ability and duty to remove identified copyrighted material, but did not, so Napster was held liable.

Bingo!

Why do people find this so hard to understand? Napster was held liable for not following the DMCA, Youtube and google are following the DMCA so they are not liab

Providing torrent files wouldn't be direct infringement, but would rather easily fall under one or more forms of indirect infringement. This is because when you help someone infringe, you're in just as much trouble as the infringer is. There are limits to this: not just anything is sufficient to qualify, and where it is, there may be protections for you. This is why Google (in their main business at least) doesn't get in trouble the way that Napster did; there are enough differences that they don't have to fear being shut down. But your average torrent site isn't particularly different from Napster in any way that counts.

Actually reading the Napster case and the relevant bits of 17 USC 512 would likely prove informative as to just how it works, and why one site, acting one way, might be treated more favorably than another site, acting another way.

Plus, courts do have some leeway, and on the whole they don't like people with unclean hands. They'll still treat them fairly, but they needn't be friendly, and sometimes that can be serious trouble. Napster tended to run afoul of this sort of thing too.

society doesn't. Society considers it a good compromise to allow creators a limited monopoly on the distribution of their works so as to encourage greater creation of those works. It's just unfortunate that society has no means to test and monitor the effectiveness of this deal.

Your argument is rather retarded, something like "do you still beat your wife?" style stuff. Your questions are something like:Q1) Given that a legal system improves the lives of those involved, do you try to abide by the law?A1) Oh yes.

Q2) Have you ever driven a car at a speed greater than the posted legal speed limit?A2) Err...

Q3) Have you ever been a passenger in a car driven at a speed greater than the posted legal speed limit?A3) Err...

I'm sorry, are you actually trying to argue in favour of speed limits, "no sampling" and parking fees? Are you crazy? All three are arbitary laws introduced by people who 1) don't know when to stay out of other people's business 2) are greedy SOBs trying to make unfair revenue. The point of "no sampling" is to force people to "buy before you try". It's much like the "no refunds" policy that typically follows it. The purpose of speed limits and parking fees is to make money off motorists much like toll

Not quite. Society, at least a large portion of it, does not seem to consider it wrong to download copyrighted material illegally. Nor do we seem to consider it wrong to share copyrighted material with others. So therefore, they cannot consider it a good compromise to allow a limited monopoly. If We did, people wouldn't infringe, right?

When the laws and Society have a parting of ways, it can be particularly painful, especially for those on the leading edge of change.

Not quite. Society, at least a large portion of it, does not seem to consider it wrong to download copyrighted material illegally. Nor do we seem to consider it wrong to share copyrighted material with others. So therefore, they cannot consider it a good compromise to allow a limited monopoly. If We did, people wouldn't infringe, right?

Your point, just because a lot of people have no qualms about stealing, murder or hard drug use with no restrictions doesn't mean that everyone does. If you only hear about

It isn't hard to download from youtube, it is actually quite easy. On top of that, someone can convert to Mpegs and easily distribute. Sounds to me Youtube pretty well resembles Kazza, just a couple more steps involved though.

does anybody really think that Google didn't spend a lot of time/money/lawyers figuring this stuff out BEFORE shelling out over a billion dollars for youtube? Just because the armchair QBs kept going on about the legal trouble(s) google was going to end up in, it doesn't necessarily make it true.

Just because the armchair QBs kept going on about the legal trouble(s) google was going to end up in

That's not what the armchair QB's kept going on about. That YouTube isn't liable for posting the infringing content doesn't change the fact that SOMEONE is liable for posting the infringing content. When the content owners start sending subpeonas to YouTube for the IPs of the people posting the content and then the ISP's of those users to get names and addresses and file those RIAA-style $150,000-per-download lawsuits, then people stop posting content to YouTube, and with a lot of YouTube's content gone, YouTube's value decreases substantially.

Think about it. Those 'hey' clip girls are liable for TRILLIONS* in damages!

. When the content owners start sending subpeonas to YouTube for the IPs of the people posting the content and then the ISP's of those users to get names and addresses ....that Google didn't log that information.

Because many (mostly TV shows) videos on YouTube are partial snippets at low quality it, in all likelihood, drives new viewers to programs. Despite the fact that the common belief here is that "content owners are completely oblivious" I think they actually realize this. When shows are posted in full, over and over, they are going to complain. When snippets of shows are posted they are basically ads and the content owners, in large part, probably LIKE this.The difference with the music sharing sites of ol

The DMCA is a big bundle of laws and regulations. The takedown provision is one of the few areas that actually mostly works. Most of it is still bad, such as the anti-circumvention provision. It's part of the lawmaker idiocy that thinks that new and special laws are required for the Internet. The reality is that in 99.9% of cases, existing law already (more than) adequately adresses the activities in question.

Thanks to the Bells, all these companies [YouTube, etc.] are now protected by a "notice and take down" system when they host user content. That means that if Jon Stewart notices an infringing copy of The Daily Show on YouTube, Comedy Central can write a letter to YouTube and demand it be taken down.

OK, so the system works because Comedy Central can tell YouTube to take some infringing work down, and that wasn't the case with Napster. I remember the RIAA wanted Napster to take files down, Napster said they couldn't, then they started filtering searches or something. That makes sense.

But then...

Why isn't YouTube is trouble in the same way Napster and Grokster were? The first difference, as indicated, is that Napster simply wasn't covered by the 512 safe-harbor law, and YouTube is. Napster wasn't "hosting" information at the direction of its users, but rather providing a tool for users to find and download predominantly infringing content.

Huh? It sounds to me like everyone's covered by this 512, but Napster couldn't hold up their end of the agreement. Nothing to do with "hosting" from what I understand, other than because they weren't hosting the files they couldn't remove offending files.

Could someone with more information clarify this?

Also, if this precedent is set, what would stop someone from setting up a "company" that hosts MP3s on a website, same as YouTube hosts videos? The RIAA would swamp the company with requests to take down specific songs, and the community could respond to it.

Since that's the only way to keep the site up, it would be in the community's best interest to take down the files within a reasonable time limit. I'm sure the files would be uploaded again, anyway. There could even be some points system for taking down offending files.

What would this achieve? Files would be shared, for one, but I'm not especially concerned with that. It would bleed the RIAA since they would have to have people request every file be removed, individually. Since they'd probably try to use software to find all files made by their artists, a CAPTCHA could be used to ensure a real person is making the requests.

Also, if this precedent is set, what would stop someone from setting up a "company" that hosts MP3s on a website, same as YouTube hosts videos? The RIAA would swamp the company with requests to take down specific songs, and the community could respond to it.

I think you just described Usenet. However, watch out for ALS v. Remarq.

The panelists seemed to agree that is is an issue which the DMCA handles well. These letters are just a system of notice; failing to comply with the letter requesting that you take down the contested content doesn't have any bearing on a subsequent legal dispute over that content. It provides a mechanism to correct copyright problems without litigation.

/.ers love to complain about these letters as a tool of oppression, and certainly there's some chilling effect because most small operations are likely to take down the contested content, however there was at least a good intention behind this system.

I'd love for youtube to start responding to DMCA takedown notices the way google does:

In response to a complaint we received under the US Digital Millennium Copyright Act, we have removed 1 videos(s) from this page. If you wish, you may view the video that the DMCA complaint was registered against here

Think about it...how could I possibly know *which* video infringes a copyright unless I can see it for myself, for educational purposes?

Why not? Unless the requester can clearly identify the offending material (and we should define identifying - supplying exact content and sequence of visual material found liable or questionable) in the request, there is no basis for action (why would you risk with a legal action about illegal removal unless you are clearly and beyond any doubt convicted that the (rights to) material in question really belongs to the entity requesting the removal).And once you have a legal request, it is, by definition, pub

But that's the law and why YouTube should really, really thank its friends at Bell.Thank them for what? It's not like the YouTube concept was a shot in the dark that just, luckily happened to have its ass saved at a critical moment by the DMCA?

It is, as it was planned.The YouTube founders (lawyers) thought of all of these contingencies long before these journalists actually did some research into the DMCA.

What the authors of the DMCA didn't realize is that you enforce copyright at your own peril in todays world.

The RIAA pissed away a $10B+ opportunity by not blanket licensing the original Napster. Now they're on their last lap around the bowl. The MPAA will suffer a similar fate if they try and push their bought and paid for copyright nonsense too much further. Google knows exactly what its doing and exposing the absurdity of DMCA is a great first step.

I think Jon Stewart/Stephen Colbert and the execs at Comedy Central are smart enough to realize that having short low quality clips of their shows is really free advertising and viral marketing. They get a larger audience, more exposure and sell more DVD's/whatever because YouTube exposes their product to many people who wouldn't otherwise have watched. Nobody is selling YouTube clips on DVD-R's at the flea market or on the street.

In fact one of the most valuable services GooTube could offer us is a list of companies who, in their "piracy is theft, we lost $100B, the world is coming to an end, waaaaaaaaaaah" paranoia, actually send takedown notices.It would let us know who the clueless idiots (most of MPAA/RIAA) are.

I would be very surprised if Comedy Central ever sends a takedown notice to YouTube. They strike me as a reasonable bunch. (Funny too.)The rest of the asshats can shoot themselves in the foot all they want as far as I'm concerned.

What I love is in the BBC News this morning a completely uneducated politician says that YouTube basically doesn't police the videos that come in.
My point is how can they? They get an absolute deluge of videos in every single day. Do they expect an entire warehouse of people checking it? The fact is with the number of videos they get every single day the ONLY option is to have it community moderated and quite obviously, the community likes what they're getting so unless you want a small selection of video

A similar legal exemption applies in Europe, where you are exempt from liability for material in respect of which you are the "host", a "mere conduit" (which would cover your ISP). There's also an exemption for "caching", but that only covers caching for the purpose of improving performance, rather than, say, Google's website cache (which would infringe copyright if hosted in Europe).

The hosting exemption is subject to "notice and take down" provisions, which I gather also apply in the US. Ironically, the wording of the EU law means YouTube would increase its liability were it to monitor content for copyright violations - because you only need to look at YouTube for 15 seconds to come across material that self-evidently infringes copyright, and the moment YouTube is aware of infringing material then (under the EU law) it would be required to take it down "expeditiously" even if it has not received any complaint from a copyright owner. One of those areas where ignorance can be bliss.

But the bottom line is that, without these exemptions, the internet would be unworkable. No ISP or website host could remain in business for five minutes if it was potentially liable for material it hosted or transmitted. And without these laws, the ISP or host would be liable in many cases (eg for hosting child pr0n).

It's a totally bogus argument, someone searching for infringing content will find "predominantly infringing content". All I get out of this is that the Napster ruling was wrong and that yougoog have a PR agency at work trying to put some distance between the 2 in themselves and Napster in the eyes of potential litigants.

By trying to be a common carrier - ie they make no pre-determination on the content they accept & distribute - they are exempted from a lot of the laws reguarding assisting copyright infringement. The cavieat is that in order to comply with the rest of the rules, they have to have & use a plan to remove infringing material when they are notified about it.
If a copyright holder come to them & says "Hey bubba0001 is displaying crap of the week and it's infringing on my copyright, please remove it.